External
behaviors may identify the intention of the accused
High
Court Division (Criminal Appellate Jurisdiction)
Criminal Appeal No 703 of 1998
Nasir Howlader
v
The State
Before Mr. Justice Mohammad Anwarul Haque and
Mr. Justice AKM Asaduzzaman,
Date of Judgment: January 11, 2004
Result : Appeal dismissed
Background
Mohammad Anwarul Haque, J: This appeal is directed
against the judgement and order of conviction passed by the learned
Sessions Judge, Begerhat on 06.04.1998. In Sessions Case No 38 of 1995
where the learned Session Judge has found the accused appellant guilty
of the offence punishable under section 304(1) of the Penal Code and
sentenced him to suffer rigorous imprisonment for life. Also to pay
a fine of Tk 5,000/=; in default; to suffer for 6(six) months more.
In short, the case of the prosecution is as follows: On 16.2.1995 at
about 1.00 PM while deceased Moshiur Rahman was preparing to take bath
in the water of the cannel. Keeping his working material spade on the
bank in front of the house of Abdul Mannan Howlader, the accused Nasir
Howlader and others were crossing on way to village Fulhata the deceased
Moshiur Rahman asked him why he has not given the paddy to his full
brother which is due to him. On that issue there was hot exchange of
words and ultimately accused Nasir Howlader took spade and gave two
consecutive murderous blow on the occipital region of the head and quickly
left the place of occurrence and took shelter in the house of one Delwar
Hossain Howlader. Thereafter, deceased immediately was taken to the
hospital for treatment but on the early part of following day victim
succumbed to his injuries. In the meantime police with the help of local
law enforcing agencies apprehended the accused person and took him into
the custody from the house of Delwar Hossain Howlader. Narrating these,
brother of the deceased lodged the FIR in the Morelganj Police Station.
It was recorded punishable under section 302 of the Penal Code and handed
over it to investigating officer who ultimately submitted a report with
a recommendation to stand trial of the lone accused Nasir Uddin Howlader
for committing the offence punishable under section 302 of the Penal
Code. During the course of trial charge was so framed against the accused-appellant
punishable under section 302 of the Penal Code which was duly read over
and explained to the accused-appellant where he abjured his guilt and
claimed to be tried. The defence case as it transpires from the trend
of cross-examination and suggestion put that he has been falsely implicated
in this case out of previous enmity. He has neither assaulted to the
deceased on the date, time and manner nor he has caused the death of
the deceased in any way as alleged by the prosecution. Considering the
evidence the learned Sessions Judge has found the accused-appellant
guilty of the offence of culpable homicide not amounting to murder.
Thereby awarded sentence of imprisonment for life with fine of Tk 5,000/=
in default to pay six months rigorous imprisonment more under section
304(1) of the Penal Code as it has attracted exception 4 of section
300 of the Penal Code.
Deliberation
After the decision of the learned Session Judge the accused go to the
higher court with an appeal. Mr Md Khurshed Alam Khan the learned Advocate
appearing on behalf of the accused-appellant submits that during the
course of trial, prosecution has not examined the vital charge sheeted
witnesses like Delwar Hossian Sikder. Though accused alleged to have
been arrested from his house immediately after the occurrence and as
such it has weaken the case of the prosecution ensuring benefit to the
accused-appellant. The learned Advocate further submits that non-examination
of the investigating officer has also equally given a fatal blow to
the prosecution case which has also opened the path of the accused person
to be acquitted of the charge brought against him. On the other hand
Mr. SM Aminul Islam the learned Assistant Attorney General appearing
on behalf of the respondent submits that prosecution has proved the
case beyond any shadow of doubt with the help of credible evidence.
The learned AAG further submits that non-examination of the investigation
officer by itself is not fatal to the prosecution case unless such case
is made out alleging that accused has been prejudiced for such non-examination
of the IO. Since there is nothing of the record that accused has ever
asserted that for non-examination of the IO the accused has failed to
draw the attention in the statement, recorded under Section 161 of the
Code of Criminal Procedure. Unless such act of prejudice is proved or
alleged; mere non-examination of IO will not cause any harm to the prosecution
case. Shahabuddin Khalifa has also come to corroborate the case of the
prosecution who has also claimed him as an eyewitness of the occurrence.
Moreover, the evidences are also found to be a bundle of contradictions
and have totally failed to prove the commission of the offence in the
manner as alleged by the prosecution. On the other hand Mr. SM Aminul
Islam the learned Assistant Attorney General appearing on behalf of
the respondent submits that, prosecution has proved the case beyond
any shadow of doubt with the help of credible evidence.The learned AAG
submits that non-examination of the investigation officer by itself
is not fatal to the prosecution case unless such case is made out alleging
that accused has been prejudiced for such non-examination of the IO.
Since there is nothing of the record that accused has ever asserted
that for non-examination of the IO the accused has failed to draw the
attention in the statement, recorded under Section 161 of the Code of
Criminal Procedure where contradiction with the evidence, given in the
court on oath. Unless such act of prejudice is proved or alleged; mere
non-examination of IO will not cause any harm to the prosecution case.
Dr. Md. Ataur Rahman,
held the autopsy of the body of the deceased, has also proved the case
of the prosecution in a verbatim manner. He has opined that the death
of the deceased Moshiur Rahman Khalifa was due to shock and haemorrhage
as a result of injuries, which was antemortem and homicidal in nature.
The evidence so
far adduced by the prosecution is found to have been credible, reliable
and natural one because witnesses being co-workers, had sufficient opportunity
to witness the occurrence from very close range, held in a broad day
light. It is to be remembered that in the deposition of witness there
are always normal discrepancies however honest and truthful . Taking
this view in mind we are of opinion that so far prosecution evidence
is concerned the same is adequate, trustworthy and does not suffer from
any kind of infirmity in the form of contradiction as such has proved
the case of the prosecution beyond any shadow of doubt. Also we opinion
that there is nothing of the record where defence has made out a case
that he has been prejudiced for non-production of the I.O. As such non-production
of the investigating officer cannot be considered as a fatal one, which
has already been decided by the Apex Court in the judgment. The learned
Session Judge relying on such evidence has decided the case in favour
of the prosecution and found that the accused guilty of the offence
punishable under section 304(1) of the Penal Code in place of section
302 alleging that it attracts exception 4 of the section 300 and accordingly
it is a case of culpable homicide not amounting to murder punishable
under section 304(1) of the Penal Code.
Mr. Khurshed Alam
Khan the learned advocate for the accused-appellant submits that in
order to bring the case within the ambit of section 304(1) the trial
court must give a positive decision that the accused had intention to
cause death and is also covered by any of the exception of section 300
of the Penal Code. No doubt, the intention, being mental act of the
accused, cannot be the subject of proof with the help of oral evidence
rather conduct and external behaviors of the accused person in performing
the act to cause death will identify the intention of the accused. In
the instant case it is evident that the accused used a dangerous weapon
like spade and gave two consecutive murderous blows on the vital part
of the body like occipital region of head. When an accused is found
to use a dangerous weapon to cause fatal injury on the vital part of
the body like head in a consecutive manner certainly it will prove his
intention to cause such bodily injuries as is likely to cause his death.
The above decisions of our Apex Court is absolutely befitting one for
this case also because in this case the accused-appellant used dangerous
weapon to blow one after another to cause such bodily injuries as were
likely to cause death of the deceased. As such we find no other alternative
but to say that the accused-appellant had intention at least to cause
such bodily injuries as were likely to cause death of the deceased which
comes within the mischief of first part of section 304 of the Penal
Code.
Decision
In the light of the above observation we are of opinion that in no way
this case can be brought within the scope of second part of section
304 of the Penal Code and accordingly the decision given by the learned
Sessions Judge cannot be interfered and the appeal is liable to be dismissed.
Mr
Md Khurshid Alam Khan, Advocate for the appellant, Mr S M Aminul Haque,
A A G for the respondent
